Background

On 28 March 2013, the Federal Parliament in Belgium has adopted two Laws (the « Laws") which were recently published in the Belgian Official Gazette (on 26 April 2013). They are designed to reform competition law and price control in Belgium.

The amended Laws are expected to enter into force in September of this year.

The amended Competition Act constitutes Book IV of the new Code of Business and Economic Law (Wetboek van economisch recht / Code de droit économique).

The main changes to the Competition Act are the following:

A new authority

The Competition Authority will be transformed into a single, independent administrative body, composed of an investigative arm and a decision-making arm. The College of Competition Prosecutors (Auditoraat/Auditorat) will oversee the investigative phase, while final decisions will be taken by the Competition Board (Mededingingscollege / Collège de la Concurrence).

Procedures before the Competition Authority

  • Infringement procedure

Under the new procedure, undertakings will receive the statement of objections during the investigative phase and will be able to present documents and information in their defense. The College of Competition Prosecutors will submit a preliminary decision, rather than a report to the Competition Board.

  • Procedure for interim measures

The procedure for interim measures has also been amended. The new procedure provides for strict deadlines to exchange written observations and should allow the Competition Authority to take a decision within two months form receipt of a request for interim measures.

  • Settlement procedure

The Competition Authority will be able to opt for an expedited settlement procedure in which the undertakings concerned acknowledge their violation(s) of competition law and agree to pay a fine. Should companies accept the settlement proposal, they will have to comply with the conditions spelled out by the College of Prosecutors. Settlement decisions cannot be appealed.

Appeal of investigative measures

Another important modification is the possibility for undertakings to contest investigative measures by the College of Competition Prosecutors. In a separate appeal following issuance of the statement of objections, undertakings under investigation will be able to file an objection with the Brussels Court of Appeal to the inclusion on the preliminary decision of evidence obtained during inspections by the College of Competition Prosecutors.

Introduction of personal liability

The Laws introduce the possibility to impose administrative fines ranging from 100 to 10.000 EUR on any individual that participated in a cartel. The rationale is to force any employee of a company (from sales forces to management) to comply with competition rules. Individuals providing information to the Competition Authority may apply for immunity. This does not preclude the company to also apply for leniency.

Supersizing Price Control : Price Cap for up to six months

In practice, when there is an urgent need to avoid a situation where, in the very near future, a serious and irreversible damage is likely to occur and to harm companies, consumers or the general economic interest, the Competition Authority may decide to take interim measures to improve the situation for a period time of up to six months. The measures include the setting of maximum prices.

Such decision of the Competition Authority may be challenged before the Court of Appeal of Brussels, which has six months to decide whether to uphold or annul the decision, or amend the timing and conditions thereof. In the meantime, producers and distributors cannot refuse to supply goods/services where maximum prices are set as interim measures.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.